A comprehensive concern in recent criminal procedure decisions in the United States Supreme Court has been the apprehension that certain rights afforded to the accused detract from efficient law enforcement. Efficiency in controlling crime and obtaining accurate verdicts is preferred over the recognition of rights which impede that process. This model of the purposes of the criminal justice system has its origins in the judicial reluctance to apply the Fourth Amendment exclusionary rule as a means of excluding otherwise probative evidence simply because "the constable blundered."' The problems in Fourth Amendment jurisprudence are well known. As two commentators have observed, "[Tihere is virtual unanimity . . . that the Court simply has made a mess of search and seizure law." Unfortunately, the pressures evident or implicit in interpretation of the Fourth Amendment have spilled over into the Court's exegesis of both the Fifths and Sixth Amendments, despite the differences in constitutional text and in the perceived relationship to accurate factfinding. The Fourth Amendment directly addresses the collision between law enforcement techniques and the individual's "expectation of privacy"s and thus warrants the balancing that the Court engages in when confronted with that collision. Neither the Fifth nor the Sixth Amendments involve the same concerns, but appear to describe absolute limitations upon the power the state may exert over an individual accused of crime. However, the Court has disregarded those limits when the goals of factual accuracy and law enforcement efficiency are thought to be hindered. The purpose of this Article is to identify the important tasks of the criminal defense attorney, to delineate strategies that will infuse the criminal appellate process with arguments that will support and direct accomplishment of those tasks, and to identify recent United States Supreme Court decisions that will nourish those strategies.
Laura Gardner Webster, Resources and Rights: Towards a New Prototype of Criminal Representation, 44 Mercer L. Rev. 599 (1993).